arch/ive/ief (2000 - 2005)

In Brussels, preparations are in full swing to place the planned directive on the patentability of "computer-implemented inventions" under the radar. The approval of the EU Council of Ministers' controversial version of the directive is on the agenda of one of the last meetings of the ministers this year. The agenda doesn't even precise, which meeting it applies to. A document by the Council of the European Union lately published indicates that the so-called Mertens Group is taking concrete steps towards preparing the official adoption of the Council of Ministers' common position of the middle of May of this year, but the political agreement of May 18th on the proposed directive can no longer be formally adopted as the common position of the EU Council. Should the heads and deputy heads of missions of EU member states that make up the "COREPER" have no objections to the position of the EU Competitiveness Council of this spring, the directive might be formally adopted without debate under the aegis of the Dutch Presidency of the Council of the European Union at the very last minute before Christmas at a meeting of Environment Ministers or of those responsible for Agriculture and Fisheries. The only Council meetings left under the Dutch Presidency are one on Environment on 20 December and one on Agriculture and Fisheries on 21-22 December.

If the EU Council adopted the legislative proposal of May 18th, it would do so without democratic legitimacy. The idea of a debateless and voteless adoption of an "A item" is only to speed up and simplify the process if a qualified majority is in place. In this particular case, there isn't.

As of November 1st, new voting weights apply in the EU under the Act of Accession. The collective number of votes of all countries that affirmatively supported the legislative proposal on May 18th amounts to 216, falling short of the required 232. It would set a more than regrettable precedent for European democracy if the EU Council adopted a Common Position on an insufficient basis.

This scheduling on the part of the Council of Ministers - and the Christmas surprise it bodes - is provoking indignation among opponents of software patents. Thus Laura Creighton, vice-president of the Foundation for a Free Information Infrastructure (FFII) and herself a software entrepreneur has vociferously criticized the "last minute" maneuvering. Only the "most committed opponent to the democratic process" could, in her opinion, believe that racing the paper through with an A-item approval the week before Christmas in a meeting of ministers whose remits do not extend to the topic in question was the proper response to the "widespread consensus” rejecting the Council's position. Hence Ms. Creighton's bitter comment on the move planned by these representatives of governments: "The bad smell coming from Brussels has nothing to do with the fish."